Positive Liberties at the Point of a Gun or Constitutional Obsolescence?

[Doug Kmiec] 

Oh, Second Amendment, we hardly knew ye.  

The Second Amendment has two main parts: a preamble and an operative provision. The preamble: “a well regulated militia, being necessary to the security of a free state,” is a statement of purpose.   The operative provision: “the right of the people to keep and bear arms, shall not be infringed” is a provision that employs a collective “the people,” and in this, it would not seem well-suited to convey the idea of an individual right.

This was the interpretation more or less given the Second Amendment by the Supreme Court in United States v. Miller in 1939.   The court concluded that the possession or use of a short-barreled shotgun had no reasonable relationship to the preservation or efficiency of well-regulated militia, and therefore, the Second Amendment posed no limitation to its federal restriction.

Fast-forward to 2008—does the Miller opinion and the language of the Second Amendment mean that the District of Columbia can preclude the possession of a handgun even within one’s home?

The best—but unlikely—answer: This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance.   End of case, see ya in Salzburg, Tony.   

This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states.   “Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.

So, what else might the court do? With a total of 69 briefs on file, the court has received plenty of advice with all kind of novel answers. Some fancy footwork from usually reliable originalists would simply disregard the preamble.   It adds nothing to the operative provision, they say. Really? What happened to the interpretative admonition to give meaning to every word?  

To see the Second Amendment in this structural way is not to make it an odd duck, but to treat it akin to the establishment clause. The establishment clause as originally understood (and before the invention of judicial incorporation) safeguarded state-established churches.   In the case of the Second Amendment, what was safeguarded was the ability of the state to call up its citizens for service in the militia with their own guns at the ready.   BYOG—see ya down at the square, Festus.

Since no state today expects individual citizens to bring their own weaponry into militia service, what, exactly, does the Second Amendment safeguard now?  

Miller might be said to protect the right of citizens to access the kinds of weapons usable in today’s state guard units that are within the customary control of individuals—e.g., handguns and rifles, but not missile launchers and M-16s. This is possible, but the right should only apply if the particular state actually runs their militia BYOG, and given the deficit budget of California, are you listening, Arnold?  

Respected Second Amendment scholar and my former OLC colleague Nelson Lund finds a broader right preventing “Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens.”   Professor Lund reaches this conclusion by conceding that the concern foremost in the minds of the founding generation—fear of a tyrannical federal government—has subsided, and in any case, an armed citizenry would not likely be able to deter a heavily weaponized federal government.   There’s no getting around it—there is today a significant gap between civilian and military small arms, whereas in the 18th century, Americans commonly used the same weapons for civilian and military purposes.

Now, constitutional obsolescence is an unusual thing, but as an original matter, it need not be wrong.   We may be used to constitutional rights having expanded application in light of new technology (e.g., the Fourth Amendment implications of electronic wiretapping abandoning the old trespass requirement for an unreasonable search), but there is no reason to believe that modern development might not also mean contracted application.   Such may indeed be the second-best case of restraint—the first, escaping through the D.C.-is- not-a-state escape hatch, now looking ever so more attractive.

Since the Second Amendment is no longer needed or perhaps capable of performing its anti-tyranny function, Professor Lund would have the court substitute a new purpose for the Second Amendment, the right of self-defense—which indeed has a long English common law heritage—it’s just not related to the Second Amendment. Lund’s argument is interestingly premised upon natural law principles (which would immediately prompt me to like them), including the Declaration of Independence, and a liberal reading of William Blackstone who saw no distinction between “a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Notably, Lund says, Blackstone made no distinction between oppression by the government itself and oppression that the government fails to prevent.

Natural law this may be, but it is not restraint.   If the Roberts Court finds a self-defense right based on the government’s failure to act, it will in fairness be obligated to awaken Joshua DeShaney from his coma and bring the Gonzales girls back to life, for in both cases, the court adamantly denied (albeit under the due process clause) that the Constitution was “a guarantee of certain minimal levels of safety and security.”  

It will indeed be interesting to see if the American Constitution is transformed from a protection of negative to affirmative liberty at the point of a gun.